Card Range To Study

193 Cards in this Set

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Contracts checklist

- Common law or UCC? (UCC: sale of goods & certain merchant transactions)
- legal relationship between the parties
- defenses to contract?
- conditions precedent? have they been fulfilled?
- duty to perform been discharged?
- duty to perform been breached?
- third party beneficiaries, assignment, or delegation issues?
- REMEDY

contract formation

- offer (termination)
- acceptance
- consideration
- DEFENSES

offer: requirements

- INTENT: would a reasonable person believe his acceptance would create a contract?

- common law vs. UCC?
- what damages are recoverable?
- what limitations?
- what is the measure of damages?
- restitution, rescission, or reformation available?
- specific performance?
- land sale, construction and personal service contracts

specific performance of contract for sale of land: what does abatement mean?

Seller can't do full performance so the purchase price is ABATED as a result. Breach must be immaterial. Can't do it if breach is so large that it would be like making a new contract.
EXCEPTION: contracts based on income from the land; if the income isn't affected then no abatement.

land sale contract remedies: defaulting seller

can still get specific performance with abatement, as long as breach is immaterial!

Does Statute of Frauds apply to a promise to repay a loan that really benefits you?

No - Statute of Frauds does not apply

"I will sell to George if he pays within 10 days." What is it?

An offer for an unilateral contract

If you assign away a contract does that assign away liability?

NO. (Exception: under UCC you can contract out liability for goods lost during shipping.)

Once an offer is rejected can the offeree later accept?

NO.

Agreement to forgive debt if you do something else instead. Is the original debt discharged?

NO; it is only SUSPENDED until the new debt is discharged!

If you fail to pay a third party is it a defense to argue that the contract price changed/was a mistake?

YES - partial defense!

In a personal services contract is performance excused by illness?

Yes!

If someone owes you a debt can you orally assign that to someone else?

Yes

If debtor's debt to creditor is past the statute of limitations and debtor assigns third party's debt to creditor can third party assert the statute of limitations defense?

NO; third party's own debt has not passed the statute of limitations so he's still liable!

If one party is mistaken on a fact and the other party knows better can they take advantage of that?

NO.

If one party knows the other party's offer is too low can they accept anyway?

NO - can't take advantage of other side's mistake of fact.

Ask for more money for the same contract. Enforceable?

NO - preexisting duty to fulfill the contract!

Original offer in writing. Oral counter-offer with new term. Is the new term enforceable?

NO - not written.

UCC: Is an offer to keep open for more than three months enforceable?

Yes but only for the first three months!

Shipment of nonconforming goods: is that an acceptance?

NO - it's a counter-offer. Must be accepted or rejected in whole!

If seller delivers an imperfect shipment what are buyer's options?

Reject entire shipment accept conforming part of shipment and reject nonconforming part or accept the entire shipment and sue for damages

Lost volume rule:

Seller has unlimited supply and limited volume. If buyer breaches seller can sue for lost profits. (Even though he found another buyer that means only one sale whereas if buyer had not breached he would have had TWO sales.)

Define condition subsequent in a contract:

When it occurs it cuts off an already existing absolute duty of performance.

Can a contractual duty be delegated?

Yes but only as long as performance by the delegate won't materially change the obligee's expectancy under the contract!

Is an oral modification of a written contract valid under the parol evidence rule?

NO.

Can the contract include a clause for liquid damages?

NO. Can only contract for actual damages! (Liquid damages only available under very limited circumstances.)

Silent acceptance of a contract?

- offeree silently takes the benefit of offered services - reasonable opportunity to reject - reason to know that they were offered with the expectation of compensation

When can impossibility be used as a defense for not fulfilling a contract?

Only after the contract has been entered into.

Is impossibility objective or subjective?

OBJECTIVE - no one could fulfill the contract!

Unilateral mistake

- one party is mistaken about material facts relating to the contract - the mistake adversely affects that party - the other party knows of the mistake!

Is a new promise to pay an expired debt enforceable?

YES! Even though the original debt isn't!

Does the parol evidence rule apply to subsequent modifications?

NO.

parol evidence rule

forbids the introduction of extrinsic evidence that would change the terms of a later written contract

Service of a skilled negotiator: is it delegable (to another negotiator

NO - it's a personal service

Assignment supported by consideration: what result?

It forms a second contract! Obligee is a third-party beneficiary of the second contract and can sue for performance.

When the buyer seeks damages for nonconforming goods, may he sell the nonconforming goods to pay seller's debt?

Yes!

Mutual mistake: terms vs. reason for entering

Mutual mistake is only a valid defense to contract for mistake of terms. If you were mistaken in your reasons for entering into the contract, that's not a valid excuse.

Promise to forbear on a lawsuit even though you don't have a valid cause of action. Does that count for consideration?

YES, as long as you HONESTLY AND REASONABLY believe the claim is good, even if it isn't really.

Does the Mailbox Rule apply to options?

NO. Acceptance of an option is only effective when received by the offeror.

Land sale contract: is a mere description of the property enough to satisfy the Statute of Frauds?

Yes! Does not need to be a complete "legal" description. (Who needs all that legal bullshit anyway?)

UCC: Does the merchant have a chance to cure even if the deadline has passed?

YES - seller has a reasonable chance to cure even if it goes past the deadline. (Reasonableness!)

Divisible contract

- performance of each party is divided into parts
- number of parts from each party is the same
- parts match up

This must be explicit agreement!

Does a "bonus" need consideration?

YES.

Unilateral mistake

Can only be asserted if the other party knew of the mistake!

Time of the essence clause: is simply having a deadline enough?

NO - simply having a deadline is not enough to indicate that time is of the essence. You must specify!

Otherwise failure to meet the deadline will be considered a minor breach, as long as still performed within a reasonable time.

Are employment contracts divisible?

YES - so the employee can get partial payment for the work he actually did.

Contract remedy for full performance

Damages for breach

Constructive condition precedent

One party's obligations will take time (eg. photography), the other party's obligation is instantaneous (eg. payment). The obligation that takes time must be substantially completed before the other party must render performance. Thus, the obligation that takes time is a constructive condition precedent.

Consideration: legal detriment

You must do something you did not otherwise have a legal obligation to do.

Implied promise of prevention

If you impede the other party's performance, you are in breach!

Parol evidence rule: does it apply to actions for misrepresentation?

NO - misrepresentation is essentially a tort action so the Parol Evidence Rule doesn't apply.